Judicial Review and Legislative Power: Marbury v. Madison

The aftermath of the bitter presidential election of 1800 brought forth the Court's decision in Marbury v. Madison, which many believe is the single most important ruling in the Court's history. In 1800 Republican Thomas Jefferson defeated incumbent Federalist John Adams for the presidency. Unwilling to relinquish the power they had held since the founding of the Union, the Federalists sought to entrench themselves in the only branch of government still open to them—the judiciary. One of Adams's first acts in the interim between his electoral defeat and his departure from office was to appoint Secretary of State John Marshall, a committed Federalist, as chief justice.

Congress speedily confirmed Marshall, who continued to serve as secretary of state until Adams left office on March 4, 1801. Congress, at Adams's behest, also approved legislation creating sixteen new circuit court judgeships, authorizing Adams to appoint as many justices of the peace for the newly created District of Columbia as he deemed necessary, and reducing the number of Supreme Court justices from six to five at the next vacancy. The last was intended to deprive Jefferson of a quick appointment to the bench.

Adams named and Congress confirmed the sixteen new circuit court judges and forty-two justices of the peace. On March 3, Adams's last night in office, he signed the commissions for the new justices of the peace and had them taken to Marshall, who was to attach the Great Seal of the United States and have the commissions delivered to the appointees. Marshall affixed the seal but somehow failed to see that all the commissions were actually delivered.

William Marbury, an aide to the secretary of the navy, was one of the appointees who did not receive his commission. With three other men in the same position, he asked Jefferson's secretary of state, James Madison, to give him the commission.

When Madison, at Jefferson's direction, refused, Marbury asked the Supreme Court to issue a writ of mandamus ordering Madison to give the four men their commissions. In December 1801 Chief Justice Marshall asked Madison to show cause at the next session of the Court why he should not comply with the order.

The Republicans were already talking of repealing the 1801 act creating the new circuit court judgeships, and in March 1802 Congress did so. To forestall a challenge to the repeal as invalid, Congress also delayed the next term of the Supreme Court for almost a year—until February 1803.

Exacerbating the antagonism between the two political parties was considerable personal animosity between Chief Justice Marshall and President Jefferson. Marshall did not relish the thought that Jefferson would best him in this contest. Under modern standards, Marshall, whose oversight had led to Marbury's suit in the first place, probably would have had to disqualify himself. And there also would be some suggestion that the case was moot by the time the Court heard it argued. But neither factor deterred Marshall from taking it up.

His insistence created an apparent dilemma. If the Court ordered delivery of the commission, Madison might refuse to obey the order, and the Court had no means to enforce compliance. It seemed likely that Madison would refuse; the government did not even argue its viewpoint before the Court. And if the Court did not issue the writ, it would be surrendering to Jefferson's point of view. Either way, the Court would be conceding its lack of power.

Marshall resolved his problem with a remarkable decision that has been called a “masterwork of indirection, a brilliant example of Marshall's capacity to sidestep danger while seeming to court it, to advance in one direction while his opponents are looking in another.” [5]

Ignoring the question of jurisdiction, Marshall ruled that once the president had signed the commissions and the secretary of state had recorded them, the appointments were complete. He also ruled that a writ of mandamus was the proper tool to use to require the secretary of state to deliver the commissions. [6]

Having thus rebuked Jefferson, Marshall turned to the question of whether the Supreme Court had the authority to issue the writ—and concluded it did not. Congress, Marshall said, had added unconstitutionally to the Court's original jurisdiction when, under the Judiciary Act of 1789, it authorized the Court to issue such writs to officers of the federal government.

To justify striking down a section of a federal statute, Marshall drew heavily on Hamilton's reasoning in No. 78 of The Federalist Papers. The chief justice wrote:

The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it. [7]

Having established the Constitution's supremacy over legislative enactments, Marshall turned to the question of whether the judiciary had the authority to determine when acts of Congress conflicted with the Constitution:

It is, emphatically, the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operations of each. So, if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case, conformable to the law, disregarding the constitution; or conformable to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case: this is of the very essence of judicial duty. If then the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.

The judicial power of the United States is extended to all cases arising under the constitution. Could it be the intention of those who gave this power, to say, that in using it, the constitution should not be looked into? That a case arising under the constitution should be decided, without examining the instrument under which it arises? This is too extravagant to be maintained. [8]

While refusing the power to issue writs of mandamus in such cases, Marshall claimed for the Court the far more significant power of judicial review.

Marshall's claim of authority was not generally viewed by his contemporaries with the same importance that future scholars would confer. In fact, Jefferson, who believed that the legislature was the only branch capable of determining the validity of its actions, apparently did not find Marshall's claim of power particularly significant. According to historian Charles Warren, “Jefferson's antagonism to Marshall and the Court at that time was due more to his resentment at the alleged invasion of his Executive prerogative than to any so-called “judicial usurpation” of the field of Congressional authority.” [9]

Moreover, Marshall himself may have been willing to sacrifice the Court's role as the final authority on the constitutional validity of federal statutes in the face of a later political threat from the Republicans. Attempting to remove Federalist judges from office, the Republican Congress impeached and tried Justice Samuel Chase in 1805. Chase escaped conviction by the Senate, but not before Marshall, plainly concerned about the security of his own position, wrote in a letter to Chase:

I think the modern doctrine of impeachment should yield to an appellate jurisdiction in the legislature. A reversal of those legal opinions deemed unsound by the legislature would certainly better comport with the mildness of our character than [would] removal of the Judge who has rendered them unknowing of his fault. [10]

The Power Exercised

The Court's next two major rulings striking down acts of Congress both had decidedly negative effects on the Court itself. The ill-conceived decision in the 1857 Scott v. Sandford case (Dred Scott) invalidating the already repealed Missouri Compromise of 1820 was followed in 1870 by the Court's holding in Hepburn v. Griswold that Congress could not make paper money legal tender for the payment of certain debts. Listed as two of three “self-inflicted wounds” by Charles Evans Hughes (the third was the 1895 invalidation of the federal income tax), the two opinions severely strained public confidence in the Court. Both were subsequently reversed—the Dred Scott case by the Fourteenth Amendment and the Legal Tender case by the Court itself.

More than half a century elapsed between Marbury and the Dred Scott decision. During that time, the Court reviewed and upheld several federal statutes. Each time, it reinforced the power it had claimed in Marbury. And each time that the government appeared in Court to argue for the federal statute, it again conceded the Court's right of review.

As Congress began to exercise its powers more fully in the late nineteenth century, the number of federal laws the Court found unconstitutional increased. In several instances—such as the Legal Tender cases and the Income Tax case—judicial opinion ran directly contrary to popular opinion and stirred bitter public animosity against the Court. Yet the Court's authority to review these statutes was never directly assaulted. As two constitutional historians observed:

It is interesting to note that at no time in our history has the power of judicial review been seriously endangered. Despite attacks on the Court's decisions, on its personnel, and even on the procedures by which review is exercised, no major political party has ever urged the complete abolition of the power of review itself. The resounding defeat in Congress of the so-called “Court Packing Plan,” suggested by President Franklin D. Roosevelt at the height of his popularity, indicates that popular dissatisfaction with the use of the power of judicial review does not necessarily imply a feeling that the Court should be dominated by the political branches of the government. [11]

Rules of Restraint

The Supreme Court has forestalled successful challenge to its power of judicial review by its own recognition of the need for restraint in its exercise.

The Court has developed several rules to guide its deliberations.

The Court will not hear a case unless it involves a real controversy between real adversaries. The Court generally refuses to take “friendly” or collusive suits, although, as with most of these rules of restraint, the rule is often honored in the breach. Major exceptions to this rule were the 1895 Income Tax cases, in which a stockholder in a bank sought to prevent the bank from paying the income tax. It was clear that neither party wanted to pay the tax and that both wanted to test the constitutionality of the tax law.

The Court will not pass on the constitutionality of a federal statute if it can decide the issue without doing so. A major exception to this rule was the Dred Scott case, in which the Court invalidated the already repealed Missouri Compromise in order to make a pronouncement on slavery in the territories when it might have decided the case on much narrower grounds.

If there are two reasonable interpretations of a statute, one upholding it and one striking it down, the Court will favor the one upholding it. By corollary, if the constitutionality of a statute must be considered, the Court will make every effort to find it valid. A major exception to these two rules was John Marshall's opinion in Marbury v. Madison. In this first case asserting the judiciary's right to strike down acts of Congress, Marshall held that in authorizing the Court to issue writs of mandamus to federal officials, Congress had added impermissibly to the Court's original jurisdiction. Most scholars agree that Marshall could have found the statute valid by viewing the power to issue this order to federal officials as incidental to the Court's original jurisdiction.

If a statute is valid on its face, the Court will not look beyond it to examine Congress's motives for enacting it. Two exceptions to this rule are the opinions striking down congressional attempts to eliminate child labor. In Hammer v. Dagenhart (1918) the Court said Congress did not design the Child Labor Act of 1916 as a regulation of interstate commerce but to discourage the use of child labor, an impermissible objective. A subsequent attempt to tax goods manufactured by children was struck down in Bailey v. Drexel Furniture Co. (1922) on identical reasoning: the tax was not intended to raise revenue, the Court said, but to penalize employers of children.

If the rest of a statute can stand on its own when part of it has been invalidated, the Court will strike down only the unconstitutional portion. Major exceptions to this rule of separability were the Income Tax cases and Carter v. Carter Coal Co. (1936), the case invalidating New Deal legislation regulating coal production. In both cases the Court found one section of the law invalid, and then, without further examination, used that infirmity to strike down the rest of the statute.

The Court will not review cases that present so-called political questions—those that involve matters regarded as within the discretion of the political branches of government. Intervention by the Courts in such questions has been considered a violation of the principle of separation of powers. A major exception to this rule was the Court's decision in Baker v. Carr (1962), in which it held that federal courts could review state apportionment plans for violations of federally guaranteed rights. Until that landmark decision, the federal courts had consistently refused to review challenges to both federal and state apportionment.

The primary significance of these rules of judicial restraint, wrote constitutional scholar Robert K. Carr,

probably lies in the conscious strategic use which the Court has made of them. They are often available as props to strengthen the particular decision which the Court has chosen to render and have frequently had no small value in enabling the Court to support the view that judicial review is subject to many limitations which have been self-imposed by the justices. [12]

Exceptions to the rules are probably inevitable. Carr continues:

For the most part these rules are of such a character that they cannot always be followed in an absolutely consistent manner. At the same time they have been followed so often that it would be misleading to suggest that they have had no significance at all. [13]

“The Proper and Peculiar Province”

Writing in No. 78 of The Federalist Papers, Alexander Hamilton made a strong case for the principle of judicial review in the new government. Reminding his readers that the Constitution limited legislative authority, Hamilton wrote:

Limitations can be preserved in no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

There is no position which depends on clearer principles than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.

If it be said that the legislative body are themselves the constitutional judges of their own powers and that the construction they put upon them is conclusive upon the other departments it may be answered that this cannot be the natural presumption where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges as, a fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both, and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.